Din v Reginam [1977] FJSC 151; Criminal Appeal 83 of 1977 (17 October 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 83 of 1977

BETWEEN

SHARPHU DIN alias ABDUL RAZAK
s/o Karmu Din
Appellant

AND

REGINAM
Respondent

Mr. J.R. Reddy & Mr. S.R. Shankar, Counsels for the Appellant
Mr. Ikbal Khan, Counsel for the Respondent

JUDGMENT

The appellant was charged at Ba Magistrates' Court on two Counts of forgery and two of uttering forged documents. The allegations were that he forged an application for consent to a transfer in respect of C/T 6159 from Abdul Rafiq his deceased brother to himself, that he uttered that forged application with intent to defraud, and that he forged a transfer of Crown Lease 132934 from Abdul Rafiq to himself and that he uttered that transfer with intent to defraud. He was acquitted on the two counts relating to the transfer and of the charge of forging the application for consent but was convicted of uttering the forged application for consent. The basis of his defence was that the lease which the prosecution alleged to be in the name of his deceased brother Abdul Rafiq was indeed in the name of his elder brother Abdul Shaheed and he produced evidence to show that Abdul Shaheed was known as Abdul Rafiq. The original notice of appeal was laid upon ten grounds, and was a masterpiece of obscurity. In addition the day before the hearing of the appeal the appellant's solicitor filed an affidavit alleging that the magistrate had made a certain observation. I want to make it quite clear that I am not prepared to look at any attempt to supplement the record by affidavit unless the affidavit has been shown both to the opposing side and to the magistrate. In this case there was neither. Before the hearing the appellant instructed senior counsel, who amended the notice of appeal by compressing it to three grounds. First he said that the verdict was unreasonable in that the appellant's eldest brother was also known as Abdul Rafiq, that during the deceased's lifetime the elder brother had given a mortgage over the Crown Lease in question to the Bank of New South Wales, that deceased had not during his life time claimed the lease to be his, and had permitted his elder brother and the appellant to build a substantial building on it, and that deceased's wife gave conflicting evidence as to whether deceased was known as Abdul Rafiq. Then the appellant complained that the Magistrate in commenting upon the absence of the appellant's elder brother from the witness box, had cast upon the appellant a burden of proof which the prosecution should rightly have borne, and finally it was said that the sentence of fifteen months' imprisonment was too severe.

The story unfolded was indeed a curious one. It started off with Abdul Rafiq son of Karmudin of Tavua applying for a lease of land in Tavua town on 15th December 1971. Apparently the land had been advertised and Abdul Rafiq applied for 'a residential A Crown lease lot 21 or any other'. He said that he was 26 years of age and was married to one Hussain Bano f/n Gina and was in permanent occupation as a tailor employed by H. Billimoria & Co. The signature on that application was written in print script, "ABDUL RAFIQ" and was witnessed by Abhay Singh, who gave evidence at the trial and said that he knew appellant and his brother the deceased. He also knew another elder brother whom he referred to as to as 'Baraka', but could not remember his being called Rafiq. He testified that he completed the application at the behest of the deceased and that the deceased signed his name in his (Abhay Singh's presence). He said that he also made an application on behalf of the accused for a block of this land. The upshot of the deceased's application was that on 17th October 1972 a letter of approval was issued to Abdul Rafiq f/n Karmudin for a lease of lot 37 Tavua Subdivision containing 32 perches for 99 years from 1st September 1972. The rent was $28.75 per annum and $8.50 was paid for stamp duty. That approval was apparently delivered to someone who said he was Abdul Rafiq because there is a thumb mark purporting to be that of Abdul Rafiq, acknowledging it. The next thing that happened was that the lease became available. The lease has been signed "Abdul Rafiq" in English in flowing script, but since only a Photostat of the lease was put in evidence, it was rejected by the learned magistrate. That lease was sent for registration and when it returned, registered as No. 132934 the Lands Office at Lautoka wrote to Abdul Rafiq on 2nd July 1974, and someone who signed 'Abdul Rafiq' in English written script collected it on 6th August 1974. A year or so later when enquiries began to be made, the leases clerk at Lautoka who delivered the lease obtained from the accused an acknowledgment that it was he who had both signed the lease and also collected it from the leases clerk. On 17th October 1975 accused brought to the leases office at Lautoka an application for transfer of this lease 132934, from Abdul Rafiq to Abdul Razak, who is the appellant himself. He said that he was Abdul Rafiq and the application was signed by both Abdul Rafiq and Abdul Razak. He also had the form of transfer, but that was not properly witnessed. The leases clerk had his suspicions aroused because the signatures of transferor and transferee on the form of application for consent were very much alike, but only the signature of the appellant as transferee had been witnessed. He sent the documents away for the signature of the transferor to be witnessed. The documents were brought back a few days later witnessed by a solicitor called Chandar Datt but they were not accepted before the solicitor had seen Brijlal, the officer in charge. It seems that Brijlal's evidence could not be given because he was not served with a subpoena in sufficient time, and the solicitor has left the country. Nor was the transfer produced. The absence of the transfer meant that at the close of the prosecution case the Court held that there was no case to answer so far as the allegation of forgery and uttering of the transfer was concerned.

The deceased's widow Hussain Bano gave evidence that her husband was Mohammed Rafiq who was also known as Abdul Rafiq. His birth, marriage and death certificates all showed him as Mohammed Rafiq. She said that she did not find out about his application for land in Tavua until after his death on 5th August, 1975, which is the date shown on the death certificate of Mohammed Rafiq f/n Karmudin produced in Court. There is no doubt that deceased Mohammed Rafiq is one and the same person as Abdul Rafiq who applied for land in Tavua on 15th December 1971. The correspondence of the names of his wife in the marriage and death certificates and the application form leave me in no doubt as to this. She told the Court that after her husband's death the appellant wanted to marry her to his brother-in-law called Mansur and offered her a dowry of $2000, but her parents refused. A police officer also gave evidence of an interview with the accused wherein the accused alleged that his brother Abdul Shaheed had applied for land in Tavua under the name of Abdul Rafiq, but that his deceased brother was known as Mohammed Rafiq and not as Abdul Rafiq. He was given a block and then built a house on it costing $20,000 for which he raised $8,000 from the Bank of New South Wales. He denied that the land was given to the deceased brother. He stated that both he and his elder brother had signed the application for consent and the transfer in front of the solicitor Chandar Datt. The police officer also said that he interviewed accused's elder brother at Lautoka but he would say nothing.

When the trial proceeded on the two counts relating to the application for consent the application gave evidence. He said that he had applied for land in Tavua town, and that Abdul Rafiq also applied, but he did not know about Mohammed Rafiq. I think by this he quite clearly means that his elder brother applied but not the deceased, because the appellant said that he also applied in deceased's wife's name. Later he learned that Abdul Rafiq had been successful. He took that to be his elder brother. He acknowledged that deceased's thumb print was on the approval notice. He said that he and his elder brother gave a mortgage to the Bank, his elder brother signing the mortgage over the Tavua land and he himself signing as guarantor and giving his own land as collateral security by way of mortgage and crop lien. He insisted that the land was given to his elder brother and not to the deceased, and he denied that he had got together with his elder brother to defraud his deceased brother's estate. He admitted that he had gone to Lautoka and signed the lease in Lautoka, but said that he had not noticed it was made out to Abdul Rafiq.

The learned magistrate rejected the accused's contention that the approval notice and lease were granted to accused's elder brother and held that when he signed the lease and the receipt therefor he conducted himself in such a way that the clerk believe him to be Abdul Rafiq. He found that the accused knew the land had been allocated to his deceased brother and not to his elder brother. He held that the application for consent was not signed by the deceased and that accused knew it should have been signed by the deceased and that the signature "Abdul Rafiq" was forged in that it was meant to represent the signature of his deceased brother, and that his intention in presenting it was to obtain a transfer of the land to himself to defraud his deceased brother's estate. The leaned magistrate therefore found accused guilty of uttering although he held that there was no sufficient evidence to show that he had made a false document.

I come now, after that long recital to the grounds of appeal as argued by Mr. Reddy. Mr. Reddy's first point is that the lease was signed by accused with the elder brother's permission, and of course that was a matter which was unresolved because the elder brother was not called. He also pointed to the evidence of the bank clerk who witnessed the signatures of accused and his elder brother on 2nd June, 1975. The elder brother signed as Abdul Rafiq. That was two months before deceased's death, and he says that it is quite inconceivable that deceased did not know what was happening. He submits that there is no intent to defraud because everyone acted upon the premise that the land belonged to the elder brother. Mr. Ikbal Khan counters that by saying that the evidence of fraudulent intent lies in the transfer of the land to accused after the death of his younger brother the deceased. It is perfectly clear as I have stated earlier that the application for land was made in the name of the deceased Mohammed Rafiq who gave his name as Abdul Rafiq. The appellant in his statement to the police states that his elder brother applied for land, but the deceased Mohammed Rafiq did not , and he said that his elder brother got a lease of lot 37, and that he the appellant built a house on it. He said, moreover it was a false allegation that his deceased brother got the land. In his evidence in court he said that his deceased brother was weakly and illiterate, and he said that when the land was opened up, he the appellant applied in the deceased's wife's name. He said that his elder brother also applied. He did admit, however, that deceased received the approval and signed for it by affixing his thumbmark. Now it may be perfectly true that this was regarded as family land by the accused and his brothers. Unfortunately for them, the deceased brother's wife attained an interest in it by virtue of the death of her husband, and unfortunately for the accused his attempt to get into his own name did not begin until after the death of his brother. It is that attempt to get his brother's land into his own name which in my view provides the evidence of fraudulent intent. The learned magistrate found that accused knew that the application for consent should have been signed by his late brother, or since he was dead by his personal representative. I think there is evidence to support that finding, in that there is evidence that accused knew the land had been allocated to and belonged to his deceased brother, If he knew that , he knew also that he was not entitled to act as he did in connection with the land. Even if, as Mr. Reddy says, the accused's family had been wont to look on this as family land, the position had changed with the death of the brother. I think also that the evidence of Hussain Bano that the accused wanted her to marry his brother-in-law and offered a dowry of $2,000 lends some countenance to this intent.

As to the calling of the accused's elder brother, Mr. Reddy suggests that his presence was necessary for the prosecution case, because of the allegation that the elder brother had dealt with the lease as if it were his property. The evidence of Inspector Salikram shows that the accused's elder brother was invited to give a statement to the police but refused to do so. It was probably not to be expected that he would be any more helpful if he were giving evidence under subpoena. Perhaps the answer may be that he also should have been charged. Apparently the appellant did not see fit to call him, so that no inference should be drawn from his absence on one side or the other. Mr. Reddy submits that the magistrate placed a burden of proof upon the appellant and he supports his submission by referring to two of the passages in which the learned magistrate refers to the absence of the appellant's elder brother. The first passage occurs in the early part of the judgment where the learned magistrate said "The accused gave evidence on oath and called one witness in support. He did not call his elder brother Abdul Shaheed of Lautoka." That is all. The other passage was "I reject the accused's contention that the approval notice and lease were granted to his brother Abdul Shaheed of Lautoka. The brother has not given evidence to that effect.........." The learned magistrate then goes on to explain why he rejected the appellant's contention above mentioned. There is however one other passage about the appellant's elder brother. It occurs in the penultimate paragraph of the judgement." Because it is possible that Abdul Shaheed did sign the document I must acquit the accused upon the count of forgery. I need hardly comment that such a course might not have been necessary if the police had called the elder brother to give evidence..........." I do not think that the first two passages quoted put any burden upon the appellant, but even if there were any suspicion of that, it is surely set at rest by the third passage, which places squarely upon the prosecution the duty of calling the elder brother. I have considered the evidence of the bank officer who witnessed the signature of accused's elder brother to the mortgage. In my view it does not take the position any further. It is, I think, self-serving evidence.

I turn now to the question of sentence. This is a misdemeanour and the offender is liable to imprisonment for two years. The magistrate sentenced the appellant to fifteen months' imprisonment. Mr. Reddy submitted that I should bear in mind that appellant will in effect be fined $20,000 as he will doubtless be faced with a civil action by his deceased brother's personal representatives. That may be or may not be so, but I think it is not a matter that I should take into account. I think that this was an attempt by the accused by means outside the law to deprive his deceased brother's personal representatives of something they were entitled to, and the sentence will stand. The appeal will be dismissed, both as to conviction and sentence.

(Sgd.) K.A. Stuart
JUDGE

LAUTOKA,
17th October, 1977.